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Ask the Lawyer: 'Mixed signals' may be defense against sex charge

May. 21, 2014 - 04:09PM   |  
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Q. My partner was sending mixed signals and I thought our sexual contact was consensual. Now I’m facing a sex assault charge. What can I do?

A. Sex involves a range of spoken and unspoken messages. People can express their interest in having sex verbally, through their actions, or both. Sometimes words may contradict actions.

When a man or woman sends mixed messages before or during sexual activity — and later accuses the other party of sexual assault in violation of Article 120 of the Uniform Code of Military Justice — the accused may be able to raise the issue of mistake-of-fact.

Lack of consent to engage in a sexual act, or the inability to consent, are the linchpins of many military sex crimes. But there’s an important difference between making assumptions about consent and receiving mixed signals about consent.

As the Manual for Courts-Martial notes, just because someone doesn’t physically resist sexual conduct does not mean he or she consented to it. Further, “[a]current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.”

In most cases, in order to claim the accused held a mistaken belief regarding the consent of the complaining witness to the sexual conduct at issue, the accused must be able to show that he or she both honestly and reasonably believed the alleged victim consented to the sex act, according to the U.S. Court of Appeals for the Armed Forces in U.S. v. Michael C. DiPaola (2008). This belief must be reasonable “under all the circumstances.”

DiPaola was a Navy culinary specialist third class who was convicted of indecent assault, which was then an offense under Article 134. He had been involved in an on-again, off-again relationship with a female petty officer. One night, he visited her in her barracks and repeatedly said he wanted to have sex with her, and she repeatedly responded “no.”

However, they later began kissing and moved to her bed, where she let him remove her shirt. DiPaola later pinned the petty officer down on the bed and again pressed her for sex, which she continued to refuse, and he later left her room.

“The conduct and conversations of the parties during the encounter, as informed by the ‘mixed message’ defense theme, provide ‘some evidence’ that could support an honest (subjective) and reasonable (objective) belief as to consent to some or all of the alleged acts,” the CAAF ruled.

Consequently, the court found the court-martial judge erred in not instructing the panel on the mistake-of-fact affirmative defense, and set aside the findings on the indecent assault charge and its related sentence.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC ( Email questions to

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